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Time with Stupid: Circuit Court Puts Napster to Sleep

Joshua McDaniel

February 21, 2021 | My sixth-grade science teacher, fancying himself too clever for corporal punishment, showed his particular distaste for me by making me sit directly in front of him, my desk touching his, so close I could smell and taste his highly objectionable breath during his daily vituperations against me and my "attitude." So close, too, he could not see my left fingers, hidden behind my back, indicate "a," "b," "c," or "d" to the entire class in response to his oral pop quizzes. Obtuse to the end, he had no clue I could see through his paper, except for where his thumb and fingers held it. All my peers were apprised of that over a hirsute and gray turkey lunch.

"I don't understand why everyone always gets exactly the same 95," he said one day, never one to leave well enough alone. "Do you think I'm stupid? Don't you know I know it's you?" The perfect set-up. But bump, set...no spike, I said nothing. Even at that age, I was ethically opposed to the use of that word, "stupid;" it's cruel, and most often not true. My silence, of course, earned me a brief vacation the faculty and staff of Cole Middle School thought would be punitive. It's really hard to feel contrite, though, when you're flush with pride in refraining from the use of the word "stupid" in reference to an obviously stupid enemy.

If eschewing the use of the word "stupid" against obviously stupid enemies can be considered a source of pride, Napster and friends have a great deal to be proud of. On Monday, February 16, the 9th Circuit Court of Appeals rendered rendered a decision stating that the injunction leveled against Napster by Judge Patel several months ago is valid ("required," even, they say), but added that Napster, Inc. may only be held liable for copyright infringement if they fail to take action after being notified of infringement. Thus the court placed some of the burden on record companies and offended bands to show infringement. The real stupidity came in the RIAA's response, when Hillary Rosen bleated, "We feel that Napster's business model is morally and legally wrong and we're very glad that the 9th Circuit Court agreed with us 100 percent." Business model? Napster, to date, has no business model.

Oh, Hillary. The RIAA could have helped bring a mutually beneficial--wildly beneficial--business model to Napster, as Bertelsmann in its astute foresight elected to do. The biggest coherent community of music consumers anyone has ever seen--somewhere around 61 million users, all huddled around a single server--is for the most part willing to shell out at least five dollars a month to use Napster, and a subscription model isn't that hard to implement, especially when you have the vast resources the Big Five record conglomerates have. I could do it, even, and I've only got about $19. The RIAA could participate in this, profit substantially from it, and, at long last, you, Hillary Rosen could come off looking like a reasonable member of a reasonable institution. Instead, millions of people read the headlines and heard the stories of your "triumph," and went home and downloaded this now ultra-infamous Napster client, just to see what all the fuss was about. And just as before, during the RIAA's attack on Diamond Multimedia's Rio, you look stupid. And paranoid, and irrational. What is it exactly that you fear? From here, it looks like a new means of targeted marketing and distribution and profit is freaking you out; I don't know how much the artists you claim to champion appreciate that.

Here's what's got Hillary so happy, lifted in an act of Fair Use from Section VIII of the 9th Circuit Court of Appeals' decision:

"The district court correctly recognized that a preliminary injunction against Napster's participation in copyright infringement is not only warranted but required. We believe, however, that the scope of the injunction needs modification in light of our opinion. Specifically, we reiterate that contributory liability may potentially be imposed only to the extent that Napster; (1) receives reasonable knowledge of specific infringing files with copyrighted musical compositions and sound recordings; (2) knows or should know that such files are available on the Napster system; and (3) fails to act to prevent viral distribution of the works."

This looks to be a death knell; how will Napster "act to prevent viral distribution" in complicity with the ruling, I wonder? Why didn't the Big Five just nip this whole thing in the bud by suing Cerfnet? But in spite of all this legal condemnation I'm extremely optimistic, for a change. Whatever happens, Napster, or the spirit of a sued-dead Napster will ultimately prevail. The only alternative to refusing to ally with Napster and its ilk is the Big 4--I won't include Bertelsmann here, since they've made their peace with the new distribution model--vanishing altogether, completely circumvented by this Napster-bred consumer. The 61 million who have taken to Napster will surely, if it dies, find a comparable alternative appearing elsewhere, and simply use that. We want to subscribe (for a reasonable fee, of course), we want to give artists their due, but if you won't accommodate us, we'll use alterNapster, or doppelNapster, or whatever. Big news: it's not that the music is free, it's that it's easy to get. Add to that the frustration and anger of artists watching this huge, unprecedented mass of concentrated consumers made to go away under litigation brought by people who claim to represent you, and you've got an industry on the verge of rending itself into little bloody greedy bits. Nothing can withstand those kinds of forces, not even the law of the land.

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